Michigan Court of Appeals; Docket No. 204366; Published
Judges Hoekstra, O'Connell, and Danhof; 2-1 (with Judge O’Connell Dissenting)
Official Michigan Reporter Citation: 238 Mich App 433; Link to Opinion 
STATUTORY INDEXING:
Work Loss Benefits: Nature of the Benefit [§3107(1)(b)]
Wage Loss for Temporarily Unemployed Persons / Qualifications [§3107a]
TOPICAL INDEXING:
Legislative Purpose and Intent
CASE SUMMARY:
In this published 2-1 Opinion by Judge Danhof, with Judge O'Connell dissenting, the Court of Appeals ruled that an accident victim who was unemployed at the time of her accident, was entitled to seek no-fault work loss benefits under the provisions of section 3107(1 )(b) if she could show that she "would have" returned to work had she not been injured in the subject accident.
In so holding, the Court of Appeals distinguished what it considered to be "obiter dictum" in the Supreme Court's opinion in Popma v Auto Club [Item No. 1717], which was a case involving the "temporarily unemployed" provisions of section 3107a. The defendant argued that Popma prevented recovery of wage loss benefits under section 3107(1 )(b) if the claimant was unemployed at the time of the accident. The Court of Appeals held that any such intimation was dicta. In reviewing the Popma decision, the majority in this case stated in footnote 3:
"The [Popma] Court strongly suggested, in addressing the interplay between section 3107a and section 3107(1) (b), that entitlement to work-loss benefits under the latter provision is dependent upon whether a 'claimant is working at the time of the accident,' and that a temporarily unemployed claimant may recover work-loss benefits under the former provision when unemployment automatically precludes benefits under the latter. Because Popma was a section 3107a case, we find its discussion of section 3107(l)(b) to be obiter dictum. While this Court normally accords deference even to Supreme Court dictum, we cannot do so in this case given the jarring inconsistency between the Popma Court's suggestion that work-loss benefits under section 3107(l)(b) are precluded unless the injured claimant is employed at the time of the accident and its express approval of MacDonald v Slate Farm's holding that 'work-loss benefits are not necessarily restricted to a claimant's wage at the time of the accident.' Rather than distancing itself from the MacDonald Court's reliance on the UMVARA commentary to distill legislative intent, the Popma Court expressed its approval. Thus, under the circumstances, we consider the Popma dictum to be neither binding nor persuasive as it may relate to the facts of this case."
In the case at bar, the plaintiff was a New York resident who was injured in an automobile accident in Michigan shortly before moving to Michigan to live with her daughter. Plaintiff had previously been actively employed full-time, but had quit her previous job in order to care for her terminally ill son who died one (1) week after her Michigan automobile accident. After plaintiff moved to Michigan, she was unable to look for work because of her claimed automobile accident related injuries.
The court held that even though plaintiff was not actually employed at the time of her accident, she was, nevertheless, entitled to seek no-fault benefits under the provisions of section 3107(l)(b) which requires payment of benefits for "loss of income from work an injured person would have performed during the first three years after the date of the accident if he/she had not been injured."
As indicated in footnote 3 above, the court emphasized the fact that the earlier Supreme Court decision in MacDonald v State Farm [Item No. 754], clearly recognized that a claimant's entitlement to work-loss benefits under section 3107(1)(b) is not dependent upon being employed at the time of the accident. Rather, the essential inquiry is whether the claimant “can prove that ‘but for the accident, she would, have been employed and, as a consequence, would have suffered actual loss of earnings.”
In this case, the plaintiff testified that she did not pursue employment opportunities in Michigan following the death of her son, because her injuries disabled her from writing, typing and performing bookkeeping work. Although she had been helping out her son-in-law in his real estate appraisal business with light office work, she consistently complained about suffering pain "all day and all night" as the result of her injuries. Plaintiff’s treating physician wrote a letter confirming that plaintiff should expect to suffer pain on a permanent basis. In light of the foregoing, the court concluded that plaintiff "demonstrated a genuine issue of material fact whether she would have returned to work had she not been injured, and thereby suffered actual loss of earnings because of her injury."
Judge O'Connell dissented. He argued that the Supreme Court's decision in Popma made it clear that work-loss benefits were not available under section 3107(1)(b) to those people who are not actually working at the time of the accident. Judge O'Connell acknowledged that Popma was a case dealing with wage loss benefits for temporarily unemployed persons under section 3107a. Nevertheless, he did not believe the Supreme Court's discussion in Popma was "obiter dictum." Therefore, because claimant was not employed at the time of the accident, she should not be able to recover benefits under section 3107(l)(b), and because plaintiff did not seek benefits under the temporarily unemployed provisions of section 3107a, the trial court's grant of summary disposition to defendant should be affirmed.
